03. 01. 2014

PROCEDURE FOR ASSESSING THE CONSTITUTIONALITY OF CERTAIN PROVISIONS OF THE LAW ON CINEMATOGRAPHY

The Law on Cinematography, which the National Assembly of the Republic of Serbia adopted on 26 December 2011, contains certain provisions which are in direct collision with the existing regulations in the field of broadcasting and with the Media Strategy, and the application of which can adversely affect the functioning of broadcast media and the independence of broadcasting regulatory bodies. Considering that these provisions are also in collision with the Constitution and protecting the interests of its members and all broadcast media, on 30 May 2012 ANEM submitted to the Constitutional Court of the Republic of Serbia an initiative for assessing the constitutionality of the controversial Article 19, paragraph 1, points 3 and 4 of this Law, with the suggestion that the Constitutional Court finds that the provisions in question are not in conformity with the Constitution. Namely, these provisions determine that the funds for the development of cinematography shall be provided, inter alia, by allocating part of the funds of the Regulatory Broadcasting Agency (RBA) - 20% and the Republic Agency for Electronic Communications (RATEL) - 10%. The funds are collected from fees charged to broadcasters (RRA) and from fees charged to broadcasters, telecommunications operators and from other charges (RATEL), pursuant to the Law on Broadcasting and the Law on Electronic Communications.

In its Initiative, ANEM stated that the disputed provisions of the Law on Cinematography undermined the unity of the legal order of the Republic of Serbia considering that the special law (the Law on Cinematography) violates the fundamental solutions envisaged by systemic regulations governing some other areas (the Broadcasting Law and the Law on Electronic Communications), which was in collision with the Constitution. ANEM also stated that the disputed provisions were inconsistent with the constitutional guarantees of freedom of opinion and expression, freedom of the media and the right to information, and particularly with freedom of opinion and expression through radio and television, freedom of the media in broadcasting and the right to information through radio and television, considering that they implicate the undermining of the system of financing of the regulatory bodies responsible for broadcasting, which constitutes an interference with the independence of these regulatory bodies and renders the financing mechanisms of regulatory bodies dependent on ad hoc decisions by public authorities. Furthermore, ANEM pointed out that the disputed provisions of the Law on Cinematography was not in accordance with the Broadcasting Law and the Law on Electronic Communications, which provide for a different purpose of any surplus realized by regulators.

The Constitutional Court, acting on two initiatives, one of which is ANEM's, at the session held on 18 December 2013, passed ​​a ruling to initiate the procedure for assessing the constitutionality of the provisions of Article 19, Paragraph 1, points 3 and 4 of the Law on Cinematography. In the explanation of the ruling to initiate the procedure, the Constitutional Court stated that the issues disputed in terms of their constitutionality were the following: whether the disputed provisions violate the unity of the legal system; whether prescribing the obligatory allocation of a part of income of RBA and RATEL brings into question the constitutional and legal position of holders of public law powers as special regulatory bodies which, as a rule, have functional and financial independence; whether funds for the development of cinematography must be provided in the state budget; and whether the disputed provisions are sufficiently precise, clear and predictable to RATEL in terms of legal certainty, as RATEL is to apply them, and bearing in mind that the legal provision defines different fees from those in the parent Law on Electronic Communications. From this explanation it follows that the Constitutional Court largely based its ruling on the allegations of ANEM provided in the Initiative. The Constitutional Court delivered this ruling to the legislator, the National Assembly, for its response, with a deadline for response within 60 days from the receipt of the decision.

The ruling of the Constitutional Court is available (only in Serbian) here.